Bhaskar Bhattacharya, J. - (1.) This appeal is at the instance of an applicant under sections 433, 434 and 439 of the Companies Act, 1956, and is directed against the order dated 4th September, 2002 passed by a learned Single Judge of this Court thereby dismissing the application for winding up.
(2.) The appellant before us filed an application before the Company Court under sections 433, 434 and 439 of the Companies Act, 1956 thereby praying for an order of winding up of the National Engineering Industries Limited, the respondent herein, on the allegation that by virtue of various agreements between the petitioning-creditor and the company, the former supplied goods on behalf of the latter for the modernisation of the Rourkela Steel Plant, the value of those aggregating to Rs. 10,35,30,147.07 but out of those amount, only a sum of Rs. 6,71,87,352/- was paid by the company thereby keeping a sum of Rs. 3,63,42,795.07 as due and payable. According to the petitioning-creditor, in spite of repeated requests of the creditor, the company had failed to pay the balance amount of Rs. 3,53,42,795.07 which included the accrued interest of Rs. 1,96,32,992.00 to the petitioning-creditor. It was further alleged that there was specific admission on the part of the company to pay-off the dues of the petitioning-creditor but the company had failed to honour the same. It is alleged that in a meeting held between the parties, the company committed to pay Rs. 95 lakh and that too, excluding the preliminary acceptance certificate, commissioning and final acceptance certificate but ultimately, paid Rs. 40 lakh out of the said amount of Rs. 95 lakh. Accordingly, a notice in terms of section 434 of the Act was given by the Advocate of the petitioning-creditor and after receiving the said letter, the company raised frivolous disputes which would be apparently proved to be baseless as would appear from the minutes of the meeting between the parties dated 23rd March, 1999 where specific commitment was made; hence the application.
(3.) The aforesaid application was contested by the respondent by filing affidavit-in-opposition and in the affidavit, it was specifically asserted that no amount whatsoever was due and payable by the company to the petitioning-creditor and on the other hand, the company was entitled to a sum of Rs. 53,88,316/- from the petitioning-creditor being the liquidated damages for both the delay and the non-fulfilment of performance-guarantee as was agreed upon subject to a maximum of 10 per cent of the contract price. It was further contended that the company was entitled to claim various amounts on account of defective circulation of pumps and other related components supplied by the petitioner which were not according to the prescribed specification. The further defence of the respondent was that the PAC equipments supplied by the petitioner was rejected by the Rourkela Steel Plant for a value of Rs. 68,50,000/- as the same, not being of the required quality, did not serve any useful purpose.;